Isaiah v. State

• Decision Date: 30 June 1911
• Citation: 176 Ala. 27,58 So. 53
• Parties: ISAIAH v. STATE.
• Court: Alabama Supreme Court

58 So. 53

176 Ala. 27

ISAIAH v. STATE.

Supreme Court of Alabama

June 30, 1911

Rehearing Denied April 4, 1912.

Appeal from City Court of Montgomery; Armstead Brown, Judge.

Jacob Isaiah was convicted of carrying a weapon, and appealed to the Court of Appeals, which submitted a constitutional question to the Supreme Court. Response to application for rehearing, in the Supreme Court, upon the ruling of said court on certain questions to it submitted for decision by the Court of Appeals.

For subsequent decision in Court of Appeals, see 58 So. 57.

Hill Hill, Whiting & Stern, Evans & Parrish, and M. D. Brainard for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

ANDERSON, J.

Section 2 of Acts Special Session 1909, p. 258, says: "It shall be unlawful for any person to carry a pistol about his person on premises not his own or under his control," etc. Section 5 provides that the indictment is sufficient if it charges that the defendant carried a pistol "on premises not his own or under his control." This is a criminal statute, and must be strictly construed, and, so construed, it means that a person is prohibited from carrying an unconcealed pistol only upon "premises" not his own or under his control; that is, he may carry it anywhere except upon the premises of another. It is therefore a mere regulation as to carrying an unconcealed pistol, and is intended to prevent one person from going armed with a pistol upon the premises of another, and does not prohibit the carrying of same, if not concealed, upon the highway or elsewhere other than upon the premises of another.

Said section 2 is not violative of section 26 of the Bill of Rights, as it merely prevents the carrying of arms for offensive purposes, and does not deprive a person of the right to bear arms in defense of himself or the state. Moreover, section 4 of the act authorizes the defendant to give in evidence the fact that he had good reason to apprehend an attack, either in mitigation of the fine or in the justification of the offense.

DOWDELL, C.J., and SIMPSON, SAYRE, and SOMERVILLE, JJ., concur in the opinion. McCLELLAN and MAYFIELD, JJ., concur in the conclusion.

McCLELLAN J.

The response the court should, in my opinion, make to the inquiry submitted by the Court of Appeals is set forth in the following opinion, delivered for the court on original consideration:

The certification of the Court of Appeals submits this question: "Is the provision of section 2 of the act to regulate the right to carry a pistol in this state, approved August 26, 1909 (General and Local Acts Special Session 1909, p. 258), violative of section 26 of the Constitution of the state of Alabama, 'That every citizen has a right to bear arms in defense of himself and the state'?" The first and second sections of that act read:

"Section 1. Be it enacted by the Legislature of Alabama, that it shall be unlawful for any person to carry a pistol concealed about his person.

"Sec. 2. It shall be unlawful for any person to carry a pistol about his person on premises not his own or under his control, provided this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office or United States marshal or their deputies, rural free delivery mail carriers in the discharge of their duties as such or bonded constable in the discharge of their duties as such."

Section 4 of the act, which has reference to the offenses created by sections 1 and 2, provides:

"Sec. 4. The defendant may give evidence that at the time of carrying the pistol he had good reason to apprehend an attack which the jury may consider in mitigation of the fine or justification of the offense."

Section 1 prohibits the carrying of a pistol concealed, about the person, at any time and everywhere. With exceptions in favor of the officials designated therein, section 2 restricts the carrying "of a pistol about his person on premises not his own or under his control." The restriction of this section 4 is territorial only. It is not absolute, as is evident. Indeed, where there is "good reason to apprehend an attack" at the time of carrying the pistol, the enactment renders that fact admissible in evidence, and this "the jury may consider in mitigation of the fine or justification of the offense." The restriction is of the carrying of one instrument, one weapon, namely, the pistol. It is not, of course, directed against any other weapon. Hence any argument or contention predicated upon a general prohibition against the bearing of all arms is inapt on the consideration of the inquiry submitted by our Brothers of the Court of Appeals. Nor is there just force or application in the suggestion of counsel for appellant that the approval of the constitutionality of section 2, thereby justifying the restriction of the right to carry a pistol to one's own premises or to premises under one's control, may sanction, if not invite, legislative restrictions, periodically created, whereby all arms might be forbidden to be borne in this state. To this suggestion we adopt the response, to a like suggestion, of Justice Walker in Dorman v. State, 34 Ala. 216, 245, when he said: "We do not perceive the force of the argument, that, if this act is sustained as constitutional, the General Assembly may, at different times and under various pretenses, pass similar laws, until the entire area of the state is covered by enactments prohibiting the sale of this species of property. If such general prohibition would be unconstitutional, we are bound to presume that the Legislature will never attempt it. But it is sufficient to say that the General Assembly has not, in fact, done what is suggested it may hereafter do. We are here to decide actual, not possible, cases. All that we can or ought to do is to determine whether this particular law is constitutional. We are certainly not prepared to hold that a Legislature shall not exercise a constitutional power to any extent, because some succeeding General Assembly may exercise it beyond the proper limit. That would be to say that a lawful power must not be used at all, because it may be abused."

Section 26 of the organic law provides: "That every citizen has a right to bear arms in defense of himself and the state." This clause of the Bill of Rights has had place in each of the several Constitutions of this state, from its admission in the Union. By the second amendment to the Constitution of the United States, it was added to that instrument that: "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." This amendment, however, has been ruled to be a restriction operative only upon the federal power. Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812. The clauses quoted from our Constitutions, from the beginning, have been ascribed, in suggestion of incorporation therein, to the Bill of Rights formulated by the Parliament, in 1688, as conditions to the recognition and installation of William and Mary as the reigning sovereigns, after the flight of James II, whose assumptions of authority and power were deemed violative and subversive of the liberties of the people of England, chief among which subjects of abuses was that of the Protestant religion. 9 St. at Large, 1 William and Mary, p. 67 et seq. To circumscribe the power of the sovereign, and to render more secure from invasion the rights involved, consistent with the favor with which William and Mary viewed the rights of at least a class of their subjects, the Bill of Rights subscribed by them contained, among other declarations, this: "That the subjects which are Protestants may bear arms for their defense, suitable to their conditions, and as allowed by law." This feature of the declaration of rights was a response to the unwarranted action, imputed to James II, of "causing several good subjects, being Protestants, to be disarmed at the same time when Papists were both armed and employed, contrary to law," and of levying money, raising a standing army, and quartering the same in violation of law. It thus appears that the right to bear arms inhered in the people, though qualified, in instances, to religious classes favored by the sovereign. From the particular clause of the Bill of Rights subscribed by William and Mary, it appears to have been expressly provided that the right to bear arms should be subject to legislative treatment, necessarily implying its regulation, if not more.

Our organic law declares the right of the citizen to bear arms in defense of self and the state, but omits any express reference of the subject to legislative action. But this omission is not important in any sense, because, with us, the Constitution is deemed an instrument of limitation of power not a grant thereof. So viewed, it was entirely consistent for this court, in State v. Reid, 1 Ala. 612, 35 Am. Dec. 44, to hold that the affirmance in the Constitution of the right to bear arms was a limitation on legislative power to deny that right, but that, in phraseology and in the evil intended to be remedied, the clause declaring the right did not, expressly or impliedly, inhibit the Legislature from the regulation of the exercise of the right--in that instance, the manner of carrying certain weapons. In Reid's Case it was said: "The question recurs: Does the act, 'to suppress the evil practice of carrying weapons secretly,' trench upon the constitutional rights of the citizen? We think not. The Constitution, in declaring that 'every citizen has the right to bear arms in defense of himself and the state,' has neither expressly nor by...